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John Roberts: Rarely Has Such a Smart Judge Written Such a Bad Opinion

Rarely has so smart a judge written so bad an opinion with such
ill consequences for the nation. Such is the handiwork of Chief
Justice John Roberts in NFIB vs. Sebelius, the
constitutional challenge to ObamaCare.

His support for the president’s signature legislation has
secured plaudits from the Washington establishment, which
undoubtedly will make his stay in the nation’s capital more
pleasant. But his gain comes at the cost of Americans’ liberties.
That Justice Roberts would abandon the Constitution for his
reputation was feared, but none expected him to do so in such
calculated fashion.

More than two years ago President Barack Obama won a celebrated
political victory with passage of the misnamed Patient Protection
and Affordable Care Act. As usual, Congress promised the
impossible: expanded coverage of more people for more services at
lower cost and reduced federal spending. The measure exceeded even
the extraordinary powers previously claimed by the federal
government. Legislators simply assumed they could do whatever they
wanted, irrespective of the Constitution.

However, the Founders created a government of limited,
enumerated powers, none of which empowered Congress to mandate that
people purchase a private product, in this case health insurance.
So multiple lawsuits were filed. ObamaCare supporters were shocked,
shocked that anyone still believed that the Constitution limited
federal authority. But the issue went to the Supreme Court.

There was much speculation about the likely outcome after oral
arguments before the high court in March. The left-wing justices
were widely expected to let the government do what it wanted,
irrespective of the Constitution. Only the center-right jurists
were thought open to argument, especially Justice Anthony Kennedy,
usually the court’s swing vote.

However, vigorous questioning from Kennedy demonstrated profound
skepticism of the government’s case. The prospect that a majority
might take the Constitution seriously generated sustained
caterwauling on the Left. The center-right justices might vote
together and overturn the law. Horrors! Liberal justices were
expected to march in lock-step irrespective of precedent and
argument, but conservative jurists had to break ranks to
demonstrate that they were not partisans. “Activism for me but not
for thee” became the Legal Left’s informal slogan.

The campaign continued, even after the case theoretically had
been decided, with pressure largely applied to Roberts. Surely he
wouldn’t want to lead a sharply divided, partisan court, now would
he? Wrote New Republic’s Jeffrey Rosen in May: “In
addition to deciding what kind of chief justice [Roberts] wants to
be, he has to decide what kind of legal conservatism he wants to
embrace.” In short, if he voted to overturn ObamaCare, liberal
society in Washington would never forgive him.

At the time there were rumors of judicial maneuvering involving
a Roberts shift. Circumstances back this interpretation. For
instance, the four other center-right justices issued an opinion
which repeatedly termed the four liberals, who joined with Roberts
to uphold the law, as the “dissent.” In fact, the conservatives
wrote the real dissent. Perhaps this reference reflects maladroit
draftsmanship. More likely the opinion was originally written for
the majority—until Roberts defected.

It wouldn’t be so bad if the chief justice had forthrightly
embraced the Legal Left’s view that the enumerated powers doctrine
is dead. Supreme Court jurisprudence had been heading in that
direction, despite occasional small detours. The result would have
been an honest burial of constitutional liberties, as reflected in
Justice Ruth Bader Ginsburg’s opinion, which concurs in the result
but not Roberts’ tortured “reasoning.” On this point Ginsburg makes
the far better case.

Instead the chief justice appeared to take the most political
course possible. He offered the Legal Right rhetoric and the Legal
Left results. Thus, he hopes advocates of constitutional governance
will applaud his compelling but irrelevant argument while the
forces of government reaction will apply his bizarre but decisive
ruling.

Roberts began his opinion by rejecting the constitutionality of
ObamaCare under the most widely claimed ground: “interstate
commerce.” He delivered a lengthy lecture tailored for the
Federalist Society about the Framers’ intentions to limit
government. Then he made the obvious point that requiring people to
purchase health insurance is creating, not regulating, commerce.
The Founders did not intend to empower the government to create an
activity for the purpose of regulating it.

But the language, while eloquent, is of no effect. As Ginsburg
pointed out, Roberts had no cause to even discuss the so-called
Commerce Clause because it was irrelevant to his ruling—it
was “not outcome determinative,” as she put it. Had he joined with
the four conservative dissenters to void the mandate, he would have
established new doctrine. However, he opined that the requirement
was constitutional on other grounds. As a result, his Commerce
Clause verbiage is but meaningless dicta. It sounds nice but binds
no one.

The language suggests how he would rule if presented with a
similar case without extenuating circumstances. But there is no
reason to believe that the chief justice would not similarly find
extenuating circumstances in the future if he believed doing so
advanced his interests.

After asserting that ObamaCare was a dramatic, unprecedented,
and unconstitutional assertion of government power under the
Commerce Clause, Roberts announced that it wasn’t really a mandate
at all: “While the individual mandate clearly aims to induce the
purchase of health insurance, it need not be read to declare that
failing to do so is unlawful.” Instead, the mandate was a tax and
thus permissible.

No lower court had adopted this reasoning. Virtually none of the
advocacy—oral argument, official briefs, amicus (“friend of
the court”) submissions, or other commentary treated the issue
seriously. Noted the dissent, “The government’s opening brief did
not even address the question—perhaps because, until today,
no federal court has accepted the implausible argument.” Moreover,
added the dissenters, there is a “mountain of evidence that the
minimum coverage requirement is what the statute calls it—a
requirement—and that the penalty for its violation is what
the statute calls it—a penalty.”

The president said it wasn’t a tax. Congress called it a
“penalty” and a “requirement.” The legislation cited the Commerce
Clause as its source of constitutional authority. The mandate did
not appear in the bill’s list of taxes or expected revenue.
Enforcement for the penalty was not like any other tax, with no
recourse to normal IRS collections. Even if the penalty counted a
tax, it did not fall within the levies authorized by the
Constitution: direct, which must be apportioned based on the
census; excise, which must be uniform; or income, which must be
triggered by income, not insurance status.

Most important, the government emphasized that the mandate was
“essential” and “necessary” for the rest of the legislation, that
ObamaCare could not work if people were not forced to purchase
insurance. Indeed, Roberts quoted the government’s contention that
“the mandate is an ‘integral part of a comprehensive scheme of
economic regulation’.” The mandate was necessary because it was a
mandate, intended to ensure that the healthy buy insurance, not
because it was a tax, which the legislation did not even count as
raising one cent.

Supreme Court precedent long distinguished taxes and penalties,
and everyone in Washington other than Roberts recognized which term
best characterized the health insurance mandate. Moreover, as the
dissent noted, “The provision challenged under the Constitution is
either a penalty or else a tax,” but “we know of no case, and the
government cites none, in which the imposition was, for
constitutional purposes, both.” Finally, the Court had previously
ruled that while Uncle Sam could tax when he could not regulate, he
could not so tax for the purpose of regulating. In
Bailey vs. Drexel Furniture Chief Justice William Howard
Taft explained: “To give such magic to the word ‘tax’ would be to
break down all constitutional limitation of the powers of
Congress.”

Roberts’ argument was disingenuous at best, dishonest at worst.
Law professor Richard Epstein called Roberts’ contentions “absurd.”
The four dissenters savaged the chief justice’s unjustified rewrite
of the health care law. Even the four liberal justices distanced
themselves from Roberts’ argument. They included two throwaway
lines agreeing that the mandate “is a proper exercise of Congress’
taxing power” and concurring with “that determination,” but refused
to endorse his unpersuasive rationale.

Instead, they defended reliance on the Commerce Clause. Had
ObamaCare’s future not depended on Roberts’ bizarre rationale, they
probably would have joined the dissenters on this point. During
oral argument Ginsburg observed: “This is not a revenue-raising
measure, because, if it’s successful, they won’t—nobody will
pay the penalty, and there will be no revenue to raise.”

So Roberts’ legal contention that you can turn a dog into a cat
by simply renaming the former is not likely to set an enduring
judicial precedent. He wrote the most important opinion in one of
the Supreme Court’s most important cases, but it is likely to be
mostly cited as an example of judicial idiosyncrasy and legal
vanity. One can imagine Ginsburg pulling Roberts aside during the
drafting process to ask: “wouldn’t it just be easier to cast an
honest vote for unlimited government?”

In fact, that would have been best even for those promoting
constitutional protection of individual liberty. Some right-leaning
observers hope that Roberts’ Commerce Clause rhetoric will narrow
that avenue of government intrusion, but he opened the door while
closing the window. Only if a future Congress is so stupid not to
include the faintest, most nominal pretext of a tax will any future
mandate, or other extraordinary government imposition, run into
constitutional resistance. Under the guise of endorsing a
government of limited, enumerated powers Roberts has written the
detailed plan for subverting constitutional rule.

This makes him far worse than John Paul Stevens or David Souter,
two justices who cheered on virtually every government assertion of
power. Neither of them ever made any pretense that the Constitution
had anything to do with individual liberty and limited government.
But their arguments were judged accordingly.

Roberts, in contrast, has become the Manchurian Justice. He
proclaims the continuing vitality of restrictions on federal power
while he votes for extending that same power. In NFIB he
“decides to save a statute Congress did not write,” noted the
dissent. He presumably stands ready to perform a similar service
for the Washington establishment in the future.

In defending Roberts from earlier leftish criticism, columnist
George Will said the jurist was “apt to reveal his spine of steal.”
Instead, Roberts demonstrated that he, like President William
McKinley, in the timeless words of Teddy Roosevelt, had “no more
backbone than a chocolate eclair.”

Roberts already is enjoying the “new found respect” with which
Washington routinely greets proponents of constitutional liberty
who break ranks. His role as legal savior dominated news coverage
of the case. Harvard’s uber-liberal Lawrence Tribe said the chief
justice had “delivered a heroic rebuke” to those who feared
judicial partisanship and “ensured that no contrived constitutional
obstacle will stand in the way of millions of uninsured Americans”
gaining “health coverage.” Roberts “saved an institution,” enthused
Tribe.

TheWashington Post included Roberts’ picture when it
editorialized that he “was statesmanlike in choosing to side with
four more liberal justices.” Wrote Dan Eggen in the Washington
Post: “the ruling was praised by many regular critics of
Roberts, including Obama.” No doubt a flurry of valued dinner
invitations will follow.

Indeed, no less shameless than Roberts was the Legal Left as it
rushed to embrace Roberts’ ruling. Never mind the narrow majority
backed by an ideologically homogenous block built upon dubious
reasoning. Never mind the politics behind Roberts’s apparent
flip-flop. All was good and right in the world since a massive new
government program had been validated. Had a politically-motivated
liberal instead joined center-right justices in overturning a
government program, cries of outrage would have swept across the
land.

Roberts did perform one public service, however—banish
forever the argument that disaffected Republicans had to vote for
big-spending Republicans over big-spending Democrats to ensure that
the former controlled judicial appointments. Even if Mitt Romney,
who has taken both sides of most important issues, including the
health care mandate, could be trusted to nominate judicial
“conservatives,” the latter could not be trusted to enforce the
Constitution. Indeed, decades of GOP appointments have failed to
reverse the judiciary’s embrace of expanded government.

So it is with the Roberts opinion in NFIB. The chief
justice undermined our system of constitutional liberty as he
proclaimed his commitment to limited government.

Congress may not mandate activity to regulate it—unless
Congress is taxing people. And to count as taxing people
legislators don’t have to admit that they are taxing, act like they
are taxing, enforce like they are taxing, or even argue in court
that they are taxing. Instead, the chief justice will
enthusiastically rewrite their legislation to make it
constitutional.

So much for either democratic or constitutional accountability.
Concluded the dissent: “The fragmentation of power produced by the
structure of our government is central to liberty, and when we
destroy it, we place liberty at peril. Today’s decision should have
vindicated, should have taught, this truth; instead, our judgment
today has disregarded it.”

At least the New Deal’s Justice Owen Roberts’ famed “switch in
time” to back New Deal programs was supposed to save all nine
justices. Chief Justice John Roberts’ seeming “switch in time” to
back ObamaCare was probably meant to boost only his career.